SHIVAM INFRASTRUCTURE Vs. SOUTH EAST CENTRAL RAILWAY

JUDGEMENT

(1.) The work of constructing Railway Under Bridge by casting and insertion of RCC Box by pushing technique, retaining wall, Arb. Appeal No.29/2017 approach road, drain and heavy duty height gage and miscellaneous work was awarded to the appellant herein. The target date for completion of work fixed as 5-8-2014 was extended till 31-3-2015, but the work could not be completed within the extended time and no application for extension of time was sought. On inspection, the work was found to be substandard and resultantly, the appellant's contract came to be terminated with effect from 31-3-2015 by the respondent SECR.

(2.) Since the contract agreement provided for arbitration clause, Arbitral Tribunal was constituted on 23-12-2015 and arbitration proceeding before the Arbitral Tribunal commenced in which the appellant herein filed statement of claim claiming the amount due on account of construction of RCC Boxes, cost of back filling of retaining walls with moorum, cost of supply of sand bags, cost of fixing of rail cluster, refund of forfeited amount and loss of overhead due to prolongation of contract. In the meanwhile, defence statement of claim along with counter claim has also been filed by the respondent SECR before the Arbitral Tribunal and the matter is pending consideration before that Tribunal. In the meanwhile, balance work of contract was re-tendered vide NIT dated 6-7-2016 and tender was awarded to respondent No.7 herein on 22-11-2016, who commenced the work and it was directed to be completed by 9-11-2017. Thereafter, the appellant filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act, 1996') claiming interim direction. The appellant filed application for grant of interim direction and also filed repeated Arb. Appeal No.29/2017 applications on 14-12-2016, 16-1-2017 and 15-2-2017. It is the case of the appellant that since no effective orders were passed by the Arbitral Tribunal, he filed application under Section 9 of the Act, 1996, for interim direction claiming that the work awarded to the new contractor be stayed till the arbitration proceedings are finally concluded and award is passed, and the new contractor would also be restrained form performing the allotted work to him and the amount of ? 26,16,665/-, which is admitted claim, be paid to the appellant. The learned District Judge by its impugned order rejected the application finding no merit leading to filing of this appeal under Section 37 of the Act, 1996 questioning that order.

(3.) Mr. Harsh Wardhan, learned counsel appearing for the appellant, with his usual vehemence, would submit that the learned District Judge is absolutely unjustified in rejecting the application under Section 9 of the Act, 1996, merely on the ground that status quo ante cannot be granted and work in question already awarded to the new contractor cannot be stayed and public project cannot be stayed pending arbitration proceeding as by that act, the public exchequer would suffer, therefore, the impugned order deserves to be set-aside.